STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, ELECTRICAL ) CONTRACTORS LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 89-738

)

WILLIAM COOPER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 7, 1989, at Fort Lauderdale, Florida, before Claude B. Arrington, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

For Petitioner: Elizabeth R. Alsobrook, Esquire

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

For Respondent: William Cooper, pro se

4400 Northwest 15th Street Lauderhill, Florida 33313

PRELIMINARY STATEMENT

This is a license disciplinary case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that he engaged in fraud, deceit, negligence, incompetency, or misconduct in violation of Section 489.533(1)(f), Florida Statutes, and that he abandoned the subject job in violation of Section 489.533(1)(p), Florida Statutes. The specific charges are set forth in an Administrative Complaint.

At the final hearing, the Petitioner appeared through counsel and offered evidence in support of the allegations in the Administrative Complaint. The evidence consisted of the testimony of three witnesses and of six documentary exhibits, all of which were received into evidence. Respondent testified on his own behalf, but called no other witnesses and produced no documentary evidence. Following the hearing, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. The Respondent filed a short letter as his only post-hearing document. All findings of fact proposed by the Parties are addressed in the appendix attached to this recommended order.

FINDINGS OF FACT

Based on the evidence received at the final hearing, the following findings of fact are made:

1. At all times material to this case, the Respondent, William Cooper, was licensed as an electrical contractor in the State of Florida, holding license number ER 0007444.

   
   

2. In October 1986, Dr. and Mrs. Gadi Gichon contracted with a general contractor named Construction Pros in connection with the remodeling of the Gichon residence in Fort Lauderdale, Florida. Respondent was hired by Construction Pros as the subcontractor for the electrical work on the residence.

   
   

3. Respondent completed a portion of the electrical work pursuant to his subcontract. Prior to July 16, 1987, the Gichons fired Construction Pros as their general contractor.

   
   

4. On July 16, 1987, the Respondent contracted in writing with the Gichons to complete the work he had started as the electrical subcontractor for Construction Pros and to do certain additional work specified by the contract.

   
   

5. The Gichons agreed to pay Respondent the sum of $5,345.54 to complete the work he had started as a subcontractor and to do the additional work. The contract price included labor and materials. The Gichons paid Respondent

   $4,500.00 on July 16, 1987, and agreed to pay Respondent the balance of the contract price upon completion of the job.

   
   

6. Respondent's work on the Gichon residence progressed very slowly after July 16, 1987, despite repeated telephone calls to Respondent by the Gichons.

   In response to the telephone calls Respondent would send one or two men to placate the Gichons by making a brief appearance at the Gichon residence. These men did not do any meaningful work on the project.

   
   

7. On October 1, 1987, the Gichons sent Respondent a certified letter demanding that Respondent complete the work in 10 days.

   
   

8. Respondent telephoned Dr. Gadi Gichon at his office in response to the letter of October 1, 1987. Respondent told Dr. Gichon that he had not returned to complete the project because he had not been paid for certain fixtures by the fired general contractor. Respondent made no further effort to complete the work.

   
   

9. The Gichons hired another electrical contractor to complete the work started by Respondent and to do additional work. The second electrical contractor found Respondent's work incomplete but ready for a punchlist inspection. The second electrical contractor received its takeover permit on November 24, 1987, and completed the work started by Respondent in less than a week. Palm Coast Electrical charged the Gichons approximately $200.00 more than the Gichons would have paid had Respondent completed his contract.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable decisional law, statutes, and rules, the following conclusions of law are made:

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

11. Section 489.533(1), Florida Statutes, authorizes the Construction Industry Licensing Board to take disciplinary action against an electrical contractor when the electrical contractor is found guilty of various specified acts, including the following:

    
    

    (f) Upon proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of electrical or alarm system contracting;

    * * *

    (p) Abandonment of a project which the contractor is engaged in or is under contractual obligation to perform. ...

    
    

12. The Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the acts alleged in the Administrative Complaint. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. Petitioner has proved by clear and convincing evidence that Respondent engaged in misconduct by abandoning the Gichon job in violation of Section 489.533(1)(f) and (p), Florida Statutes.

    
    

14. Section 489.533(2), Florida statutes, provides in pertinent part:

    
    

    (2) When the board finds any electrical or alarm system contractor guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

    * * *

    1. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

    2. Issuance of a reprimand.

    
    

15. Rule 21GG-10.002, Florida Administrative Code, which contains the guidelines to be followed in disciplinary cases, provides, in pertinent part, as follow:

    
    

    Violations and penalties. In imposing disciplinary penalties upon applicants and licensees, the board shall act in accordance with the following disciplinary guidelines and shall impose a penalty corresponding to the violations set forth below: The underlined statutory language is intended to provide a description of the violation and is not a complete statement may be found in the statutory provision cited directly under each violation description.

    * * *

    (6) Fraud, deceit, negligence, incompetence, or misconduct (489.533(1)(f), F.S.): $500.00 fine and reprimand to denial or revocation of licensure

    * * *

    (16) Abandonment (489.533(1)(p), F.S.):

    $500.00 fine to me (1) year suspension followed by one (1) year probation.

    
    

16. There was no evidence of aggravating or mitigating circumstances.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds Respondent guilty of

having violated Section 489.533(1)(f) and (p), Florida Statutes, and which imposes an administrative fine of $1,000.00 against Respondent and which further issues a reprimand to Respondent for his violations of Section 489.533(1)(f) and (p), Florida Statutes.

DONE and ORDERED this 22nd day of May, 1989, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed With the Clerk of the Division of Administrative Hearings this 22nd day of May, 1989.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-738

The findings of fact contained in Paragraphs 1, 2, 3, 4, 6, 7, 10, 11, 14, and 16 of Petitioner's proposed findings are adopted in substance, insofar as material.

The findings of fact contained in Paragraphs 5, 13, 15, 17, and 18 of Petitioner's proposed findings are immaterial.

The finding of fact contained in Paragraph 8 of Petitioner's proposed findings is unsubstantiated by the evidence.

The finding of fact contained in Paragraph 9 of Petitioner's proposes findings that the Gichons had live electrical wires in their home is unsubstantiated by the evidence. The finding of fact contained in Paragraph 9 of Petitioner's proposed findings that the Gichons had incomplete work in their home is adopted in substance.

The finding of fact contained in paragraph 12 of Petitioner's proposed finding that Respondent did not complete the Gichon's job is adopted. The finding of fact contained in Paragraph 12 of Petitioner's proposed findings that Respondent did not respond to the letter of October 1, 1989, is rejected as being contrary to the evidence.

The finding of fact contained in Paragraph 19 of Petitioner's proposed findings is subordinate.

Respondent's statement in his letter filed May 8, 1989, is rejected as being contrary to the weight of the evidence.

COPIES FURNISHED:

Elizabeth R. Alsobrook, Esquire Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

William Cooper

4400 Northwest 15th Street Lauderhill, Florida 33313

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

Pat Ard, Executive Director

Electrical Contractors Licensing Board Department of Professional

Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

Docket for Case No: 89-000738

Orders for Case No: 89-000738